Joint tenants vs tenants in common: What’s the difference?

Purchasing property is a significant investment, and getting advice on how to structure the ownership of your property is important; for example, whether to purchase as joint tenants vs tenants in common. In Australia, the Real Property Act 1886 (SA) dictates your options. Keep reading to find out more.

Under the Real Property Act 1886 (SA), when land is transferred to more than one party, it can be registered with the Lands Titles Office as being owned as joint tenants or tenants in common. At Johnston Withers Lawyers, our conveyancing team is committed to helping you make the right decision.

What’s the difference between tenants in common and joint tenants in Australian property law? Let’s explore.

What is joint tenancy?

As joint tenants, each tenant (or owner) has an identical, undivided share in the property. All joint tenants have the same rights. Joint tenancy is a common form of ownership with couples.

What does joint tenants with right of survivorship mean?

The reason joint tenancy is a common form of ownership with couples is because of a principle known as the Right of Survivorship, which dictates what happens to a joint tenancy when someone dies. As joint tenants, in the event that one of the owners dies, the deceased owner’s share of the property is transferred to the surviving owner. The deceased owner’s share of the property does not form part of his or her estate.

In a joint tenancy survivorship situation, it’s the responsibility of the surviving owner to register the death of the deceased owner on the land title. Even though the deceased owner’s share is transferred to the surviving owner, it’s recommended that you seek advice about the wording of your will, as it should include provisions in case both or all joint tenants die simultaneously.

What do tenants in common mean?

Tenants in common (or tenancy in common) is a more flexible form of property ownership that allows two or more persons to have a defined share in a property. A key difference between tenants in common vs joint tenants is that the owners can agree to own the property in equal or unequal shares with differing interests. This allows persons to hold property in unequal shares if there is a different amount of capital being contributed by each person.

What happens when one of the tenants in common dies?

Perhaps the biggest difference between tenants in common vs joint tenants is that owners who hold property as tenants in common don’t have the Right of Survivorship. If one of the owners dies, the deceased owner’s interest in the property forms part of their estate. This means it doesn’t automatically pass on to any co-owners of the properties. Tenancy in common can be used in blended family situations where parents have children from previous marriages. This way parents can make sure their property is dealt with according to their will. Our estate lawyers can also draft a will which would include that a partner continues to have a right to reside in the property after the death of a tenant in common

Looking for advice on how to change joint tenancy to tenants in common or breaking joint tenancy? Our expert team is here to help with all matters related to joint property ownership in South Australia.

Other things to think about when buying property

Beyond deciding whether to buy property as tenants in common vs joint tenants, tax implications should also be considered. We recommend that you consider the land tax implications before you enter into a contract to buy property.

From 1 July 2020 land tax laws in South Australia changed, with new rates and new methods of calculation. The main change to the way that land tax is calculated is that the property ownership on behalf of each person will now be aggregated. When you buy a property, we can advise on structuring your legal ownership to take into account land tax issues.

It’s important that you consider your succession planning each time you buy or sell property to ensure the property will be dealt with in accordance with your wishes.

When experience matters, people come to Johnston Withers

Purchasing property could be one of the biggest investments you’ll ever make. We’ve been helping South Australians for over 75 years, and getting expert advice on tenants in common vs joint tenants for your property ownership could make a big difference – Our South Australian Lawyers here to help.

If you’d like advice or direction from a lawyer about property ownership, land tax and succession planning, please contact Andrew Mitchard on (08) 8231 1110, or send us a message.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.